22CA2024 Peo v Hunter 07-25-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA2024
Garfield County District Court No. 21CR228
Honorable John F. Neiley, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Aubrey James Hunter,
Defendant-Appellant.
ORDER AFFIRMED
Division IV
Opinion by JUDGE PAWAR
Navarro and Johnson, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 25, 2024
Philip J. Weiser, Attorney General, Jaycey DeHoyos, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Mackenzie R. Shields, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
1
¶ 1 Defendant, Aubrey James Hunter, pleaded guilty to attempted
sexual assault and child abuse resulting in serious bodily injury.
The district court sentenced Hunter to twenty-five years in prison.
At the sentencing hearing, the court found that Hunter met the
statutory requirements of and designated him as a sexually violent
predator (SVP). Hunter appeals that designation. We affirm.
I. Contentions on Appeal
¶ 2 Hunter contends that the district court erred by failing to
make findings of fact regarding his risk of recidivism before
designating him an SVP. He specifically challenges the Sex
Offender Risk Scale (SORS) score he received on the SVP risk
assessment screening instrument (SVPASI), arguing that the district
court erred (1) by deferring to the SORS score without making
factual findings because the score was based on insufficient and
disputed evidence and (2) because the score does not accurately
predict recidivism as contemplated by the SVP statute. We disagree
with Hunter’s contentions.
II. Applicable Law and Standard of Review
¶ 3 Pursuant to sections 16-11.7-101 and -103, C.R.S. 2023, the
General Assembly created the Sex Offender Management Board
2
(SOMB) to create and implement a program that establishes
evidence-based standards to evaluate, identify, treat, manage, and
monitor sex offenders. See Allen v. People, 2013 CO 44, ¶ 8.
Among other duties, the SOMB is tasked with developing the
SVPASI to assist district courts in determining the likelihood that
an adult sex offender will recidivate. See § 16-11.7-103(4)(d); Allen,
¶ 8.
¶ 4 Under the SVP statute, a district court may designate an
offender an SVP when the offender (1) was eighteen years of age or
older as of the date of the offense; (2) was convicted of an
enumerated sexual offense (one of which is attempted sexual
assault); (3) committed the offense against a victim who was a
stranger or was a person with whom the offender established or
promoted a relationship primarily for the purpose of sexual
victimization; and (4) is likely to recidivate by committing an
enumerated sexual offense based on the results of the SVPASI.
§ 18-3-414.5(1)(a)(I)-(IV), C.R.S. 2023; see also Allen, ¶ 6. The
district court must make findings of fact and enter an order as to
whether an offender is an SVP. § 18-3-414.5(2).
3
¶ 5 Part 3B of the SVPASI is the SORS, which is the actuarial risk
assessment scale a district court is required to consider in making
its findings regarding the offender’s risk to recidivate. See § 18-3-
414.5(1)(a)(IV); People v. Williamson, 2021 COA 77, ¶ 7. According
to the SORS form, the score is calculated using this formula:
(number of adult cases x 2.1) + (number of juvenile cases x 3.1) +
(number of cases with a revocation x 2.2) – (earliest sex offense
filing age x .23). The form indicates that a score of 22 or more
“reflects that the individual falls into a risk category with a 50-60%
likelihood of a new sex or violent crime court filing within 8 years.”
¶ 6 The district court “should give substantial deference” to the
SVPASI. Allen, ¶ 5. The court “should not re-score the [SVPASI],”
Allen, ¶ 16, and may adopt its findings without going through it line
court may suffice, or the lack of specific findings might be harmless,
if the findings are clearly supported by ample evidence. Id.
However, where a finding in the SVPASI “is ‘unexplained,
unsourced, . . . disputed,’ and unsupported by ample evidence, due
process and section 18-3-414.5(2) require the [district] court to
4
make further factual findings before adopting the assessment.” Id.
at ¶ 8 (quoting People v. Torrez, 2013 COA 37, ¶ 84).
¶ 7 A district court’s SVP designation presents a mixed question of
law and fact. Allen, ¶ 4. We defer to the court’s factual findings but
review de novo whether those factual findings support an SVP
designation. Id.
III. Sufficient Evidence Supported the SORS Score
A. The District Court’s Findings and the SORS Score
¶ 8 The district court made the following findings regarding
Hunter’s SVP designation:
Pursuant to statute, the Court is required to go
through a number of considerations and
factors to decide whether the defendant meets
the sexually violent predator assessment. The
first is whether he is 18 years of age or older,
tried as an adult; and certainly we don’t have
any issue with that. The conviction occurred
on or after July 1st, 1999, no dispute about
that. And then whether the person’s score is
22 or more on the sex offender risk scale.
I do understand [defense counsel’s] argument
about how that is calculated, it’s sort of an
arcane formula in some respects. It’s a factor
that’s numerically calculated based on the
total number of adult cases, which in this case
they’ve indicated is 15. Total number of
juvenile cases is two, total number of cases
containing a revocation from probation or
5
Community Corrections is one. The earliest
sex offense filing age is 27.
When you run the numbers on that, the total
score comes out to be 33.69 and that is the
sex offender risk scale criteria. The note in
that is less than 5 percent of the individuals
assessed for this assessment score 22 or
higher.
The other factors to consider are one that
again is undisputed that in this case the victim
was a stranger. We don’t have findings that
there was an establishment of a relationship or
anything like that. I understand the
imperfections in scoring instruments like this.
They are based at least in theory on evidence
and reports and studies that have been done
to determine these calculations. I’m not in a
position, I’m not a scientist to second guess
those.
. . . .
Based on the information that I have, I do
think that the defendant meets the definition
of a sexually violent predatory [sic] and the
Court will make that finding and will [include]
that as part of its judgment today.
¶ 9 According to the record, Hunter’s SORS score, on which the
district court relied, was determined to be 33.69, which placed him
above a score of 22 and qualified him as likely to recidivate. The
evaluator calculated Hunter’s score, in part, by finding that he had
fifteen qualifying adult cases in his criminal history. Hunter
6
challenges this score, arguing that the evidence supporting the
score was insufficient and disputed because “neither the [SVPASI]
form itself nor the presentence report support a factual basis for
concluding that [he] . . . had 15 qualifying adult case filings.” He
further asserts that, under Lopez, the court was required to make
additional factual findings because the facts supporting the SORS
score were disputed.
B. Preservation
¶ 10 The People argue that Hunter failed to preserve this argument
for appeal and that we should therefore review for plain error. See
Hagos v. People, 2012 CO 63, ¶ 14 (we review unpreserved
arguments for plain error). We disagree.
¶ 11 At sentencing, defense counsel objected to the use of the SORS
instrument “as a whole,” calling it “off the wall” and “all over the
place.” Counsel more specifically objected to the number of
qualifying adult cases included in Hunter’s SORS calculation:
I started to do some math, and I think of note,
what puts Mr. Hunter over the edge of that 22
number that puts it above that scale is a
number of adult cases he has had. That does
not take into account the number of cases that
have been dismissed, it does not take into
account the level of offenses, it barely takes
7
into account the age of which those offenses
happened. But when you look closely at Mr.
Hunter’s history, two of those offenses are
underaged alcohol offenses that count in that
scale, one is a reckless driving. There [are]
multiple Class 3 misdemeanor offenses and
drug possession offenses.
I started just to play with the math a little bit.
If you take away I think it’s six, six total cases
from those adult numbers, that drops them
down below that 22 threshold. When you
consider some of these cases were dismissed,
or not even petty offenses there, minor in
possession cases, that drops him below that
threshold and I think that’s wrong.
¶ 12 Ultimately, the district court accepted the SORS score and
found that Hunter met the recidivism criterion. Based on this
record, the court was presented with an adequate opportunity to
address whether Hunter had fifteen qualifying adult cases for the
SORS formula, and it did so by accepting the SORS score as
calculated. See Martinez v. People, 2015 CO 16, ¶ 14 (“An adequate
objection allows the [district] court a meaningful chance to prevent
or correct the error and creates a record for appellate review.”).
Therefore, this issue is adequately preserved.
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C. Analysis
¶ 13 Per the SOMB’s handbook for the SVPASI, the total number of
adult cases filed in the SORS formula includes “district and county
cases (including Denver County) filed in Colorado or another state
in which the age at offense was 18 or older, or less than 18 and
filed as an adult,” including “cases with any misdemeanor or felony
charge, including traffic, regardless of conviction, excluding [the
current] case.” Colorado Sex Offender Management Board, 2021
SVPASI Handbook: Sexually Violent Predator Assessment Screening
Instrument (SVPASI) 13 (Jan. 2021), https://perma.cc/2V8E-7L7R
(SVPASI Handbook).
¶ 14 Hunter’s criminal history listed in his presentence
investigation report (PSI) shows seventeen total adult cases — ten
from Colorado and seven from California.
¶ 15 Of the Colorado cases, he claims that three should not have
been included in the SORS calculation. First, he challenges the
inclusion of a traffic offense from 2019. However, that traffic
offense was for careless driving resulting in injury, which is, and
was at the time, a class 1 misdemeanor traffic offense. See
§ 42-4-1402, C.R.S. 2023. The SVPASI Handbook specifically
9
includes misdemeanor traffic offenses as qualifying adult cases.
Therefore, Hunter’s 2019 traffic offense was properly included in
the SORS score.
¶ 16 Hunter next challenges the inclusion of two offenses in
Colorado (occurring in 2012 and 2013) for underage possession and
consumption of alcohol, which is, and was at the time, an
unclassified petty offense. See § 18-13-122(3)(d), C.R.S. 2023.
True, the SVPASI Handbook indicates that only cases with a
misdemeanor or felony charge are to be included. But the record
suggests that these two petty offenses were not included in the
calculation, since the number of qualifying adult case filings was
fifteen out of a possible seventeen total cases.
¶ 17 Of the seven California cases, Hunter argues that “only one
included a case number, signifying a qualifying filing.” However,
the SVPASI Handbook directs evaluators to “only include cases that
have been verified through criminal history system checks.”
SVPASI Handbook 13. The record contains no evidence that this
verification did not occur here for purposes of collecting Hunter’s
criminal history for the PSI.
10
¶ 18 Furthermore, at no point did Hunter dispute his criminal
history reflected in the PSI. In fact, before sentencing, defense
counsel gave notice of a correction to the PSI, which was unrelated
to Hunter’s criminal history. And counsel reiterated only that
single correction at sentencing.
¶ 19 Accordingly, the record supports the use of fifteen adult case
filings in the SORS formula. Furthermore, although the facts
supporting the SORS score were disputed, the district court did not
err by deferring to the SORS score to determine that Hunter met the
recidivism criterion because the score was supported by ample
evidence. See Lopez, ¶¶ 7-8.
IV. The SORS Score’s Prediction of Recidivism
¶ 20 Hunter also contends that the district court erred by deferring
to the SORS score without making additional factual findings
because the score does not accurately predict recidivism as
contemplated by the SVP statute. He specifically claims that the
SORS score does not “exclusively show the likelihood of someone to
commit a qualifying sex offense, as required by the [SVP] statute,”
but instead includes risk of recidivism for other violent, non-sex
related offenses. Following the reasoning adopted by two other
11
divisions of this court, we reject this contention. Consequently, the
district court was not required to make additional factual findings.
A. Preservation
¶ 21 The People again argue that Hunter failed to preserve this
argument for appeal and that we should therefore review for plain
error. See Hagos, ¶ 14. However, we need not address that
argument because we conclude that there was no error, plain or
otherwise.
B. Analysis
¶ 22 In People v. Brosh, the defendant argued that “the SORS does
not meet the statutory requirement for a ‘risk assessment screening
instrument’ under section 18-3-414.5(1)(a)(IV)” because it “does not
determine whether a defendant is likely to reoffend by committing
any of the specifically enumerated offenses under the specified
circumstances.” People v. Brosh, 251 P.3d 456, 459-60 (Colo. App.
2010) (quoting § 18-3-414.5(1)(a)(IV)). The division rejected the
argument by, among other things, citing to the 2008 version of the
SVPASI Handbook outlining the factors that were considered when
creating the SORS, including the “risk of arrest for violent crimes as
a ‘reasonable proxy’ in measuring recidivism of sex offenders.” Id.
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at 460. The division concluded that, in light of those considerations
and the legislative scheme, the SOMB satisfied the objectives and
criteria in section 16–11.7–103(4)(d) for developing the SVPASI. Id.
The division in turn rejected the defendant’s contention that the
SORS was invalid because it failed to assess the requisite risk of
recidivism. Id.
¶ 23 Similarly, in People v. Mendoza, the defendant argued that,
“contrary to the dictates of section 16-11.7-103(4)(d), the SVPASI
does not predict likely future commission of an SVP offense but,
instead, only identifies offenders who are likely to fail treatment or
be rearrested for non-sexual violent crimes.” People v. Mendoza,
argument and, agreeing with Brosh, “conclude[d] that, based on the
[SOMB’s] research, the SVPASI was not invalid for lacking sufficient
bases upon which to predict the likelihood of committing a future
SVP offense.” Id. at 641-42.
¶ 24 Because we agree with the analysis in Brosh and Mendoza, we
likewise conclude that Hunter’s argument that the SORS does not
accurately predict recidivism fails. We acknowledge that the Brosh
and Mendoza divisions upheld the 2008 SORS instrument and that
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Hunter was evaluated under the 2018 version. But Hunter has not
presented any argument or evidence demonstrating that the version
of the SVPASI or the SORS instrument used to evaluate him were
meaningfully distinguishable from the versions analyzed in Brosh
and Mendoza. We see no legitimate reason to decline to follow the
holdings in those cases. See § 16-11.7-103(4)(d) (The SOMB shall
“revise, as necessary, the risk assessment screening instrument . . .
.”); Allen, ¶ 16 (“The SOMB develops the Screening Instrument
using the most up-to-date sex offender risk assessment research . .
. .”).
V. Disposition
¶ 25 The order is affirmed.
JUDGE NAVARRO and JUDGE JOHNSON concur.
